The DIFC Court of First Instance formalised the conclusion of a long-standing healthcare sector dispute through a Tomlin Order, effectively staying all proceedings following a private settlement between the parties.
What was the nature of the dispute between Health Bay Investment in Healthcare Enterprises & Development and Dr Kamal Akkach in CFI 087/2019?
The litigation involved a complex commercial dispute between the Claimants, Health Bay Investment in Healthcare Enterprises & Development LLC and Anglo Arabian Healthcare Investments LLC, and the Defendant, Dr Kamal Akkach. While the specific underlying causes of action were not detailed in the final order, the presence of interim injunctions and a Confidentiality Club Order suggests a high-stakes conflict involving sensitive commercial information, likely related to healthcare management or investment interests within the DIFC jurisdiction.
The dispute reached a critical juncture in July 2022, when the parties opted to resolve their differences through a private settlement agreement rather than continuing through a full trial. The court’s role shifted from adjudicating the merits to formalising the settlement terms. As noted in the order:
All further proceedings in this claim be stayed upon the terms set out in the schedule hereto, except for the purpose of carrying such terms into effect.
This mechanism allowed the parties to maintain the confidentiality of their settlement terms while ensuring that the court retained a supervisory role should either party fail to comply with the agreed-upon obligations.
Which DIFC Court division and registrar were responsible for issuing the Tomlin Order in CFI 087/2019?
The order was issued by the DIFC Court of First Instance on 25 July 2022. The document was formally issued by the Registrar, Nour Hineidi, confirming the court's approval of the consent arrangement reached between the Claimants and the Defendant.
What were the primary legal positions held by the Claimants and Dr Kamal Akkach regarding the interim injunctions?
The Claimants and Dr Kamal Akkach had been subject to a Consent Order dated 26 February 2020, which included specific interim injunctions. Throughout the proceedings, the Claimants sought to protect their commercial interests through these restrictive measures, while the Defendant contested the necessity or scope of such injunctions. The litigation also involved a Confidentiality Club Order dated 10 May 2021, which restricted access to sensitive documents to a limited group of "Authorised Persons."
By the time of the July 2022 order, the parties had reached a consensus that rendered these protective measures unnecessary. The court’s order reflected this shift, discharging the previous injunctions and releasing the Authorised Persons from their undertakings. As stated in the order:
The interim injunctions granted by paragraphs 3 and 5 of the Consent Order dated 26 February 2020 are hereby discharged.
This move signaled that the parties had successfully negotiated a resolution that mitigated the risks the injunctions were originally designed to address.
What was the precise jurisdictional question the court addressed by issuing a Tomlin Order in CFI 087/2019?
The court was tasked with determining whether it could properly stay proceedings while incorporating a private settlement agreement into the court record without requiring the parties to disclose the specific terms of that settlement to the public. The use of a Tomlin Order allowed the court to exercise its jurisdiction to stay the action while keeping the substantive terms of the settlement in a private schedule. This addressed the doctrinal requirement of ensuring that the court's records remain accurate regarding the status of the litigation while respecting the parties' desire for a private, out-of-court resolution.
How did the DIFC Court apply the doctrine of "liberty to apply" in the settlement of CFI 087/2019?
The court utilized the doctrine of "liberty to apply" to ensure that the settlement agreement was not merely a private contract but one that remained under the court's oversight. By including this provision, the court provided a procedural safety net. If either Health Bay Investment in Healthcare Enterprises & Development or Dr Kamal Akkach failed to adhere to the terms of the settlement, the aggrieved party would not need to initiate a new lawsuit to enforce the agreement. Instead, they could return to the existing proceedings to seek enforcement. The order explicitly provided:
Each party shall have liberty to apply to the court if the other party does not give effect to the terms set out in the Settlement Agreement contained in the schedule to this Order.
This reasoning ensures that the court retains the power to compel performance of the settlement terms, effectively bridging the gap between a private contract and a court judgment.
Which specific DIFC Rules of the DIFC Courts (RDC) and procedural frameworks were relevant to the issuance of this order?
The order relies on the inherent jurisdiction of the DIFC Court of First Instance to manage its docket and facilitate the settlement of disputes. While the order does not cite specific RDC rule numbers, it operates under the framework of RDC Part 40, which governs the entry of judgments and orders, and the general powers of the court to stay proceedings under RDC Part 4. The discharge of the Confidentiality Club Order also reflects the court's authority to manage sensitive discovery materials under RDC Part 28.
How did the court treat the previous Confidentiality Club Order dated 10 May 2021?
The court treated the Confidentiality Club Order as a procedural instrument that had served its purpose. Upon the parties' consent, the court formally discharged the order and released all "Authorised Persons" from their undertakings. This step was essential to clear the procedural record, ensuring that the obligations imposed on legal counsel and experts regarding the handling of sensitive documents were formally terminated, thereby allowing the parties to move forward without the ongoing burden of the confidentiality regime.
What was the final disposition regarding costs and the status of the claim in CFI 087/2019?
The court ordered that there be no order as to costs, meaning each party bore their own legal expenses incurred throughout the litigation. The claim itself was stayed, meaning it remains on the court's record but is inactive, subject to the terms of the settlement agreement. This disposition provides a clean break for the parties, as the injunctions were discharged and the confidentiality obligations were lifted, effectively concluding the active phase of the dispute.
What are the practical implications for practitioners using Tomlin Orders in the DIFC?
Practitioners should view this case as a standard application of the Tomlin Order mechanism in the DIFC. It demonstrates that the court is highly supportive of parties settling their disputes privately and is willing to use its procedural powers to stay proceedings while maintaining a "liberty to apply" clause. For future litigants, this confirms that they can achieve a final, enforceable resolution without the need for a public trial, provided they are willing to formalize their settlement in a schedule to a court order. It also highlights the importance of clearly defining "Authorised Persons" and the scope of undertakings when negotiating confidentiality clubs, as these must be formally discharged by the court to fully release the parties from their obligations.
Where can I read the full judgment in Health Bay Investment In Healthcare Enterprises & Development LLC v Dr Kamal Akkach [2022] DIFC CFI 087?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0872019-1-health-bay-investment-healthcare-enterprises-development-llc-2-anglo-arabian-healthcare-investments-llc-v-dr-kamal-4
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case law cited in the Tomlin Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) - General procedural powers regarding stays and orders.